In the Buckles declaration they admitted that the "instructions and parameters" for MediaSentry's "on-line investigations" were developed by the RIAA's lawyers. (See Buckley Declaration, paragraph 6, page 2).

Monday, September 25, 2006

In Arista v. Lime Wire, in Manhattan federal court, Lime Wire has filed its answer and interposed counterclaims against the RIAA for antitrust violations, consumer fraud, and other misconduct. Lime Wire alleged that the RIAA's

goal was simple: to destroy any online music distribution service they did not own or control, or force such services to do business with them on exclusive and/or other anticompetitive terms so as to limit and ultimately control the distribution and pricing of digital music, all to the detriment of consumers. (Counterclaim, paragraph 26, page 18).

....

This case is but one part of a much larger modern conspiracy to destroy all innovation that content owners cannot control and that disrupts their historical business models.(Counterclaim, paragraph 28, page 18).

Friday, September 22, 2006

In UMG v. Lindor, the defendant Marie Lindor has made a motion to preclude the RIAA from introducing into the case songs as to which it has failed to produce the song files. Ms. Lindor's lawyers submitted to the Court the RIAA's interrogatory responses where the record companies had stated under oath that their case was based upon (a) Media Sentry's detection of song files being 'distributed' and (b) Media Sentry's allegedly making "perfect digital copies" of those files. Ms. Lindor's attorneys argued that the RIAA cannot prove that it made perfect digital copies of the songs if it doesn't have the song files.

Saturday, September 16, 2006

I received this important letter from those fighting the RIAA's counterpart in Hungary. Although it was initially addressed to me, its author has authorized me to publish it on the blog. I consider this letter an important, historic clarion call to action for those of us in the United States. It is clear that these folks in Hungary are way ahead of us in thinking this problem through, and in organizing the resistance, and that we have much to learn from them. I urge all of my readers to (a) disseminate this open letter far and wide, and (b) get together and act upon it:

Re: Fighting Back Against the RIAA Internationally

"Dear Colleagues,

"Thank you for answering the multitude of questions on Slashdot. That ishow I have learned about you and your work. Let me inform you that there areothers, in other countries, who are fighting the same fight you are.

"In particular, we have established a self-defense fund called Elite Defense(web-page in Hungarian: http://defense.4242.hu) in Hungary that provides legal assistance to those attacked by RIAA's Hungarian subsidaries. We are providing this service in partnership with an attorney, who actually does the legal representation. His name is dr. Zsolt Dallos (email address:zsolt@dallosugyvediiroda.t-online.hu). I would like to share our experiences with you in order to avoid reinventing the wheel (by either of us).

"Hungarian law with respect to file sharing is more similar to that of Canadathan that of the US. On top of that, we have a legal system based oncode law rather than common law. This alters the tactics of our adversariesas well as that of most effective defense, but I still think that some ofour experience may be useful to you and vice versa.

"For instance, I find that the main weapon of the copyright-mafia isintimidation and scare tactics. The actual number of cases is relatively low(compared to the number of people actively involved in file-swapping), butthey try to give each one of them big publicity in order to scare the restof us. Consequently, the actual risk of a person being sued is farsmaller than what the copyright-mafia would want us to believe. This, inturn, implies that there's a market for insurance-like services: for amodest monthly fee (approx. $1/month), we provide free legal representation anda T-shirt (saying: "they wanted to fine me for file-swapping, but all I gotwas this lousy T-shirt") to those attacked. The T-shirt is actually veryimportant: instead of being something shameful, it shows resistance to these lawsuits to besomething to be proud of, which is very important in defeating their verypurpose.

"Another very important activity of ours is that of countering the record industry's false propaganda. As you have written, the formation of the legal framework is still in progress, thus public opinion matters a lot. It is very important to show the world that it is we, not they, that have the moral and legal high ground. We organize public debates with the representatives of the copyright-mafia on university campuses, where we expose the immoral andhypocritical behavior of these guys, which is motivated by greed and nothingelse. Here are some powerful arguments that have been made in these debates:

"There is a difference between music and a recording thereof. The recordingindustry has actually robbed many musicians of an opportunity to make moneyby playing music: in many places (pubs, markets, skating rinks, etc.) wherethere was (diverse) live music (for centuries!), now we can only listen to(the same) recorded mucic. It is more cost-effective for the recordingmonopolies to hand-pick a small number of performers making them superstarsand flooding the whole world with the same (often very shallow) music thanto allow for greater cultural diversity. Thereby, they are inflictingenormous damage to humanity's cultural heritage.

"There is no better advertising for a musician, than the recording of theirperformance. If recordings are circulating freely and the music is good,people will notice and demand that music. Now, the recording industry wantsto rob musicians of this potent, yet low-cost, marketing tool in order tomaintain their control over the tastes of people and to keep the number ofpopular musicians as low as they can. The overwhelming majority of musiciansare actually benefitting from file-sharing, and file-sharing allows for makingmoney by means other than seeking the favors of recording monopolies.

"Music copyright has killed folk music. How many folk-songs do you know fromthe second half of the 20th century? That is because the recording industry has madecopyright the only way for musicians to make money. The tradition of takinga song and performing it according to one's own tastes, which lies at thebasis of folk-music, was rendered unprofitable and thus almost extinct.

"In countries where music copyright is not enforced (Russia is a primeexample), there are many more live performances. Even the most popular bandsneed to tour the contry and give concerts in order to earn their living. Andguess what, they usually make their mp3's available for download right ontheir websites for free, because that's how they lure people toperformances. That is, from the society's point of view, a far bettersituation that what you have in America and other countries with zealouslyenforced music copyright.

"The marginal costs of making another copy of a recording is, for allpractical purposes, zero. This is reflected in the fact that Universal Music is now offering free downloads. At this point, the claimed damage per shared song should be closer to $0, than to the RIAA's standard $750 (there is a different figure in Hungary, but that's not relevant in your case).

Just to let you know I've really been "Slashdotted"... a tough interview, and merciless pounding afterwards. But it was an honor to be selected, and going through it has been a lot of fun, kind of like a Friars Club Roast except without the "love" part.-R.B.

Wednesday, September 13, 2006

In "opposition" to Marie Lindor's motion to compel and for discovery sanctions in UMG v. Lindor, the RIAA submitted to the Magistrate a section of the deposition transcript in which UMG's witness, an in-house lawyer at UMG, admitted that the only people she had contacted at UMG in trying to find out about p2p file sharing between UMG and radio stations were 2 lawyers and an officer involved in procurement (Transcript, p. 42, ll. 4-15), and that she never contacted anyone in the radio promotion departments (Transcript, p. 32, ll. 20-23). She further testified that the only question she was purporting to ask was whether p2p file sharing had been used by "the company" or "Universal"(Transcript, p. 32 li. 24-p. 33 li. 7)(Transcript, p. 34 ll. 13-17), as opposed to the question Ms. Lindor's lawyers had asked -- and the Magistrate had ordered them to answer -- whether p2p had been used by the company's employees to send song files to radio stations.

The RIAA's case against a Georgia man, Atlantic Recording v. Francisco Zuleta, in Atlanta, has been discontinued.

Mr. Zuleta had filed a counterclaim against the record companies for abusive litigation,. He also submitted a declaration in which he testified that he had never downloaded any music.

Mr. Zuleta testified in his declaration that he had a roommate with a computer and that he had an open wireless router. There had been downloads to a router. The name on the Kazaa! account was the roommate's first name.

The RIAA withdrew its claim, and Mr. Zuleta withdrew his counterclaim. Both dismissals were "without prejudice".

Saturday, September 09, 2006

In Elektra v. Wilke, the Chicago RIAA case in which defendant Paul Wilke has moved for summary judgment, the RIAA has filed a motion for "expedited discovery", alleging that it does not have sufficient evidence to withstand Mr. Wilke's motion. The RIAA's lawyer said

"Plaintiffs cannot at this time, without an opportunity forfull discovery present by affidavit facts essential to justify their opposition to Defendant's motion.

1. He is not "Paule Wilke" which is the name he was sued under.2. He has never possessed on his computer any of the songs listed in exhibit A [the list of songs the RIAA's investigator downloaded] He only had a few of the songs from exhibit B [the screenshot] on his computer, and those were from legally purchased CD's owned by Mr. Wilke.3. He has never used any "online media distribution system" to download, distribute, or make available for distribution, any of plaintiffs' copyrighted recordings.

The RIAA has refused to testify on yet another subject in UMG v. Lindor, its radio promotion employees' use of peer to peer file sharing to send song files to radio stations, this despite the Magistrate Judge's having ordered them to provide such testimony at a July 25, 2006, discovery conference:

The RIAA plaintiffs have taken the position that they only need to testify about whether the companies used p2p file sharing, arguing that the Magistrate limited Ms. Lindor's interrogatories by removing the term "employees".

This is the sixth of seven fully briefed dismissal motions of which the author is aware, and the sixth that has been denied. All of the decisions are from the lower courts. All were non-appealable, so no appeals have been filed. The only remaining dismissal motion of which the author is aware is Elektra v. Barker, pending in Manhattan before Judge Kenneth M. Karas.

Jon Newton at p2pnet.net reports that an RIAA DVD being distributed on college campuses is under attack as being misleading:

Groups attack RIAA video

p2pnet.net News:- For years p2pnet has been criticizing spurious entertainment and software cartel pseudo-educational programs which attempt not merely to implant false standards, but also outright lies, into the heads of children around the world.

Now a number of public interest organizations have in a joint statement vigorously attacked Campus Downloading, a Big Four Oranized Music video travesty fronted by EDUCAUSE vp Mark Luker and the Big Four's RIAA.

An appallingly blatant example of pure corporate music industry mis- and disinformation "baloney," it purports to 'instruct' students about copyright law.

A press release of the Consumer Electronics Association, expressing its view and that of the Computer & Communications Industry Association, Public Knowledge, and the Home Recording Rights Coalition, attacking the RIAA video as "Baloney", is set forth in full here:

In Capitol v. Foster, where Ms. Foster is seeking approximately $50,000 in attorneys fees against the RIAA, her attorney has asked the Court to (a) take judicial notice of another Oklahoma case, the more recent Tallie Stubbs case (another case which the RIAA dropped because it had no evidence against the defendant), and (b) to grant the motion for leave to file amicus curiae brief submitted by the EFF, the ACLU, Public Citizen, the American Association of Law Libraries, and the ACLU Foundation of Oklahoma.Request for Judicial Notice and Response to RIAA's Opposition to Court's Acceptance of Amicus Curiae Brief*

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove